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An original contribution to the literature

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Politico reports that Neil Gorsuch’s academic writings “borrow” from other authors. This is the publication’s squeamish way of phrasing the fact that Gorsuch put his name* to texts that lifted the work of other writers without proper attribution, which in la cosa nostra is known as plagiarism.

Here is apparently the most striking example.  Gorsuch:

“Baby Doe” (an appellation used to protect the family’s privacy) was born in Bloomington, Indiana, on April 9, 1982, with two congenital anomalies, Down’s syndrome and esophageal atresia with tracheoesophageal fistula. Down’s syndrome is a chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation. 49 Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus. As a result, food and drink pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation.50 Surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success, but the parents of Baby Doe refused to consent to the surgery.

Shortly after Baby Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had the right to refuse the surgery on behalf of their child. An attorney was present at the hearing to represent the parents, though no one was present to represent Baby Doe’s potentially adverse interests. Six physicians attended, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital. The obstetricians “recommended that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia.” 51 The pediatricians, meanwhile, stated that the appropriate treatment was to undertake corrective surgery immediately, and one of the pediatricians testified that the child might enjoy a reasonable quality of life. 52 The dispute wound up in a state court where the trial judge concluded that the parents had the right to refuse corrective surgery even though their child would die. The Indiana Supreme Court refused to hear an appeal, and the child died on the sixth day after he was born while a guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.

Here is a passage from a law review article by Abigail Lawlis Kuzma:

 

The Infant Doe case involved a child who was born with Down’s syndrome and reparable13 esophageal atresia with tracheoesophageal fistula. Down’s syndrome or “Mongolism” is an incurable chromosomal disorder that involves a certain amount of physical deformity and an unpredictable degree of mental retardation.14 Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus such that substances taken orally pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation.15 Corrective surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success,16 but the Bloomington Hospital is not equipped to handle the operation.17 However, the parents of Infant Doe refused to transfer their baby to Riley Hospital, a referral hospital in Indianapolis, Indiana, for corrective surgery.18 Approximately twenty-six hours after Infant Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had a right to choose a course of treatment for their child that consisted of allowing the child to die.19 An attorney was present at the hearing to represent the child’s parents.20 ” No attorney was present to represent Infant Doe’s interests.21 Six physicians attended the hearing, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital.22 The obstetricians “recommended that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia.”23 The obstetrician who attended Mrs. Doe at the birth of her child “testified that, even if surgery were successful, the possibility of minimally adequate quality of life was non-existent due to the child’s severe and irreversible mental retardation.”24 The three physicians with pediatric privileges who attended the hearing stated that the appropriate treatment was to transfer the infant to Riley Hospital immediately for corrective surgery, and one of the pediatricians testified that Down’s Syndrome children may have a reasonable quality of life.25

In its declaratory judgment, the court concluded that the parents of Infant Doe had the right to choose the course of treatment recommended by the obstetricians in the case, that of refusing corrective surgery and allowing the child to die.26The case was unsuccessfully brought before the Indiana Supreme Court on an Emergency Appeal,27 and the child died on the sixth day after he was born while the guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.28

Obviously the first passage was copied directly from the latter text, with minor re-wordings, and with no attribution to the copied text.  That’s plagiarism. There wouldn’t be the slightest ambiguity about that definition of the concept if this were a draft of a law student’s seminar paper, but since this is, shall we say, a somewhat different interpretive context, much metaphorical ink was spilled in the wee wee hours of the morning to point out that this and similar examples aren’t really plagiarism at all, because of reasons.  I give you Princeton Law School’s Robert George:

Robert George, a law professor at Princeton University who was the general editor for Gorsuch’s book, told Politico that Gorsuch “did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own.”

“In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke,” George added.

I wonder (I don’t actually wonder; this is a rhetorical device) if Robbie George applies this standard to his own students, or for that matter to himself? Is it OK to copy long passages from another author’s work without attribution, as long as the passage in question is purely descriptive?  I would hate to think that the disciplining bodies at Princeton Law School take that view of the matter, and I’m pretty sure they don’t.

And here is Oxford’s John Finnis, the leading light of contemporary natural law philosophy, (and Gorsuch’s dissertation adviser) plunging once more into the breach:

“None of the allegations has any substance or justification.” He adds, “Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

OK then.

In my younger and more vulnerable years my father gave me a piece of advice that I’ve been turning over in my mind ever since.

“Whenever you feel like criticizing any one,” he said to me, “just remember that all the people in this world haven’t had the advantages that you’ve had.”

He didn’t say any more, but we’ve always been fairly communicative in a somewhat reserved way, and I understood that he meant a lot more than that.  So I’m not going to claim that Neil Gorsuch’s plagiaristic tendencies are some sort of horrible character flaw, or render him unfit for the Supreme Court.  ” Judge not, lest you be judged,” is the most novel way I can think of to phrase the matter.

But it’s funny in a pathetic sort of way to see people like George and Finnis falling all over themselves to claim that plagiarism isn’t plagiarism.

*Of course it’s quite possible that Gorsuch had nothing to do with the copying of this passage at all, since much high falutin’ academic writing is actually produced by  semi-anonymous and mostly uncredited research assistants. (This is of course a standard dodge when academics get caught doing this kind of thing).  See, too, infra op. cit. the habit of referring to the opinions of judges as if they had actually been written by the judges themselves, as opposed to their clerks.  This kind of meta-plagiarism is its own kettle of fish, to coin a phrase.

 

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